162 F.

3d 1175
98 CJ C.A.R. 5199
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Landree E. WAUFORD, also known as Landree Earl Wauford,

Plaintiff-Appellant,
v.
STATE of New Mexico; Attorney General for the State of New
Mexico, Defendants-Appellees.
No. 98-2134.

United States Court of Appeals, Tenth Circuit.

Oct. 5, 1998.

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

1ORDER AND JUDGMENT*

MICHAEL R. MURPHY, Circuit Judge
2

After examining the briefs and the appellate record, this three-judge panel has
unanimously determined that oral argument would not be of material assistance
in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9.
The case is therefore ordered submitted without oral argument.

This case is before the court on petitioner Landree Wauford's application for a
certificate of appealability. Wauford seeks a certificate of appealability so that
he can appeal the district court's dismissal of Wauford's 28 U.S.C. 2254
habeas corpus petition. See 28 U.S.C. 2253(c)(1) (providing that no appeal
can be taken from the denial of a 2254 habeas petition unless the petitioner
first obtains a certificate of appealability).

Under New Mexico law, "[a]ny person convicted of a noncapital felony ... who
has incurred one prior felony conviction ... is a habitual offender and his basic
sentence shall be increased by one year, and the sentence imposed ... shall not
be suspended or deferred." N.M.Stat.Ann. 31-18-17. In 1992, Wauford was
convicted of attempted armed robbery, aggravated burglary, and escape.
Pursuant to New Mexico's habitual offender statute, the state trial court
enhanced Wauford's sentence based on a 1983 New Mexico conviction for
armed robbery. In the instant 2254 petition, Wauford asserts that the habitual
criminal enhancement violates his rights under the Sixth and Fourteenth
Amendments because the 1983 conviction was the result of an unknowing and
involuntary guilty plea. Wauford further alleges that his trial counsel was
ineffective for failing to investigate the 1983 conviction and challenge the
habitual offender enhancement.

The district court succinctly summarized the procedural history of this case as
follows:

[Wauford] previously filed an application attacking the same 1992 state

sentence at issue in this proceeding. Wauford v. State, No. CIV-95-0647
NV/RLP. See Duhart v. Carlson, 469 F.2d 471, 473 (10th Cir.1972) (a court
may take judicial notice of its own record). As grounds for the previous
application, [Wauford] claimed he was denied a speedy trial, his plea was
coerced, and he was denied effective assistance of counsel. He also claimed his
sentence was wrongfully enhanced for a 1983 felony conviction under New
Mexico's habitual offender statute.

Before counsel was appointed in the previous proceeding, [Wauford] moved to

dismiss the habitual offender claim without prejudice in order to exhaust the
claim in state court. That motion was granted by the Court. Later, while
represented by counsel, [Wauford] filed a pro se motion to amend the
application in order to reassert the habitual offender claim, alleging that the
claim had been exhausted. The Court dismissed with prejudice [Wauford's]
claims based on speedy trial, coerced plea, and assistance of counsel, though no
ruling was made on the motion to amend. [Wauford] now reasserts the habitual
offender claim in this proceeding.

Dist. Ct. Order at 1-2. In light of this procedural history, the district court
assumed the petition was not barred as successive or abusive and proceeded to
decide the petition on the merits.

As to the merits of Wauford's petition, the district court first concluded that

Wauford's claim about the "misapplication" of the habitual criminal

enhancement was purely a question of state law not cognizable under 2254.
Dist. Ct. Order at 2 (citing Shafer v. Stratton, 906 F.2d 506, 510 (10th
Cir.1990)). But see Higgins v. Smith, 991 F.2d 440, 442-43 (8th Cir.1993)
(Gibson, J., dissenting) (noting conflict among courts as to whether sentence
imposed in excess of that allowed under state law is amenable in habeas
petition); Richardson v. Evans, No. 95-6464, 1996 WL 603278, at * 4 (10th
Cir. Oct.22, 1996) (unpublished disposition) (holding in context similar to case
at hand that "[t]he Due Process Clause of the Fourteenth Amendment prohibits
courts from depriving persons of liberty or property as punishment for criminal
conduct except to the extent authorized by state law"). In resolving Wauford's
ineffectiveness claim, the district court assumed that Wauford's attorney had
not investigated Wauford's criminal history or informed Wauford about the
possibility of challenging his 1983 felony conviction. It concluded as a matter
of law, however, that Wauford's ineffective assistance of counsel claim failed
because the habitual offender enhancement was collateral to his underlying
conviction and Wauford's counsel had no obligation to inform Wauford about
the possibility of challenging the prior felony conviction. Dist. Ct. Order at 3
(citing Wiedemer v. Marr, Nos. 96-1161,--1162, 1997 WL 44934 at * 2 (10th
Cir. Feb.5, 1997) (unpublished disposition)). But see Richardson v. Tansy, No.
91-2127, 1992 WL 314126, at * 3 (10th Cir. Oct.22, 1992) (unpublished
disposition) (implicitly recognizing that failure to investigate criminal
background may constitute ineffective assistance if counsel's performance was
deficient and that deficient conduct prejudiced the defendant).
10

To be entitled to a certificate of appealability, Wauford must make a substantial

showing of the denial of his constitutional rights. 28 U.S.C. 2253(c)(2).
Wauford can make such a showing by demonstrating the issues raised are
debatable among jurists of reason, an appellate court could resolve the issues
differently, or the issues raised deserve further proceedings. Barefoot v. Estelle,
463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090. (1983). Because
each of the legal grounds identified by the district court in dismissing
Wauford's petition is reasonably debatable and because the district court's
dismissal of the 2254 petition can be easily affirmed on the merits, this court
grants Wauford a certificate of appealability and proceeds to the merits.

11

Our review of the record leads us to conclude that the district court did not err
in dismissing Wauford's petition. The record on appeal contains copies of
Wauford's Plea and Disposition Agreement to the 1983 felony as well as a copy
of the Guilty Plea Proceeding. In each of these documents, Wauford
specifically acknowledges that he is entering the plea knowingly and
voluntarily. Furthermore, in the Plea and Disposition Agreement, Wauford's

attorney attests that he has discussed the case in detail with Wauford and
advised Wauford of all his constitutional rights. Finally, in the Guilty Plea
Proceeding, the trial judge specifically found that Wauford had "knowingly,
voluntarily, and intelligently plead[ed] guilty" to the charged crimes. These
documents clearly demonstrate on their face that Wauford's 1983 guilty plea
was knowing and voluntary. See United States v. Davis, 929 F.2d 554, 557-58
(10th Cir.1991) (finding trial court's journal entry sufficient to prove voluntary
and intelligent plea where journal entry recited that "the plea was freely and
voluntarily made with an understanding of the nature of the charge and
consequences of the plea"). Accordingly, Wauford's claim that his 1983
conviction was involuntary and, therefore, cannot be counted under New
Mexico's habitual offender statute is without merit.
12

Wauford's ineffective assistance claim is similarly without merit. In light of the

documents referenced above, there is no real probability that Wauford would
have refused the 1992 plea and insisted on going to trial had his counsel further
investigated his prior conviction. More to the point, this court cannot say it is
likely that any further investigation of Wauford's prior conviction would have
changed the outcome of the 1992 plea negotiations. Thus, Wauford has failed to
demonstrate any constitutional violation. See Richardson v. Tansy, No. 912127, 1992 WL 314126, at * 3 (10th Cir. Oct.22, 1992) (unpublished
disposition) (rejecting claim of ineffective assistance arising from facts almost
identical to those in the instant case on the ground the petitioner had suffered
no prejudice).

13

The judgment of the district court dismissing Wauford's 2254 petition is

hereby AFFIRMED.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir.R. 36.3